Australia’s Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “ADF [Australian Defence Force] commanders will, by necessity, have to reach decisions on the basis of their assessment of the information available to them at the relevant time”.

Australia’s LOAC Manual (2006) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “ADF [Australian Defence Force] commanders will, by necessity, have to reach decisions on the basis of their assessment of the information available to them at the relevant time”.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §5.11.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Belgium

Belgium’s Law of War Manual (1983) states:

It will not always be easy for a commander to evaluate this situation [whether an attack will be disproportionate] with precision. On the one hand, he must take into account the elements which are available to him, related to the military necessity necessary to justify an attack, and on the other hand, he must take into account the elements which are available to him, related to the possible loss of human life and damage to civilian objects.

Canada’s LOAC Manual (1999) notes that decisions must be based on an honest and reasonable expectation made by the responsible commanders “that the attack will make a relevant contribution to the success of the overall operation”, based on the information reasonably available to them at the relevant time, and taking fully into account the urgent and difficult circumstances under which such decisions must usually be made.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 4-2/4-3.

Canada

Canada’s LOAC Manual (2001) states in its chapter on targeting:

418. Standard of care

1. Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.

2. Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

3. The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 418.1–418.3.

Ecuador

Ecuador’s Naval Manual (1989) states: “The commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an objective and reasonable estimate of the available information.”

0511. The circumstances of the time are decisive to whether an object constitutes a military objective. The definition leaves the necessary discretion to the commanding officer. The Dutch Government, in ratifying AP I [1977 Additional Protocol I], has declared in this connection that military commanders who are responsible for carrying out attacks must base their decisions on their evaluation of the information available to them at the time …

…

0543. When not to attack

An attack should not proceed when an obvious lack of proportion appears to exist between the expected military advantage and the expected collateral damage. The decisive factor is whether a normally alert attacker, in receipt of and acting on due information, could have expected the excessive damage among the civilian population and civilian objects.

The US Naval Handbook (1995) states: “The commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him.”

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.2.1.

United States of America

The US Naval Handbook (2007) states that “the commander must determine whether the anticipated incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him”.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.1.

In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:

Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.

Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …

…

cc)

Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.

(1)

… International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP [1977 Additional Protocol] I) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …

…

(3)

The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. 51 para. 5 sub-para. b AP I … “may be expected” ; ICRC Customary IHL [Study] p. 50 …). The Federal Republic of Germany has, like a number of other States …, particularly emphasized this fact when it ratified the [1977] Additional Protocols to the Geneva Conventions by making a declaration … Only if a commander refrained from taking feasible precautions in violation of international law (“feasible precaution“; see. Art. 57 para. 2 sub-para. a AP I; ICRC Customary IHL [Study] p. 51 ff.) and such precautions would have led to the anticipation of greater civilian collateral damage which then in fact materialized is this relevant for an analysis of the proportionality of an attack. … In view of the circumstances known to Colonel (Oberst) Klein (distance to inhabited settlements, night time, presence of armed Taliban) and the informant’s statements, he considered the presence of protected civilians unlikely … Further feasible reconnaissance and precautionary measures (“feasible precautions”) were not promptly available in the concrete situation. Colonel (Oberst) Klein did not have to accept the danger of the fuel tankers or the fuel being retrieved by the Taliban … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian (see Art. 50 para. 1 sentence 2 AP I). However, there is no such case of doubt if – as is the case here – there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary.

Upon accession to the 1977 Additional Protocol I, Algeria stated: “To judge any decision, the circumstances, the means and the information available at the time the decision was made are determinant factors and elements in assessing the nature of the said decision.”

Upon ratification of the 1977 Additional Protocol I, Australia stated:

In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.

Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 3.

Austria

Upon ratification of the 1977 Additional Protocol I, Austria stated: “Article 57, paragraph 2, of Protocol I will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.”

Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 1.

Austria further stated:

For the purposes of judging any decision taken by a military commander, Articles 85 and 86 of Protocol I will be applied on the understanding that military imperatives, the reasonable possibility of recognizing them and the information actually available at the time that decision was taken, are determinative.

Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 4.

Belgium

In an explanatory memorandum submitted to the Belgian Parliament in 1985 in the context of the ratification procedure of the 1977 Additional Protocols, the Belgian Government stated: “The military advantage must be assessed … in the light of what a military commander can foresee on the basis of the available and relevant information which is available at the time of the assessment.”

Belgium, House of Representatives, Explanatory memorandum on a draft bill for the approval of the Additional Protocols, 1984–1985 Session, Doc. 1096-1, 9 January 1985, p. 11.

Belgium

Upon ratification of the 1977 Additional Protocol I, Belgium stated:

With respect to Part IV, Section I, of the Protocol, the Belgian Government wishes to emphasize that, whenever a military commander is required to take a decision affecting the protection of civilians or civilian objects or objects assimilated therewith, the only information on which that decision can possibly be taken is such relevant information as is then available and that it has been feasible for him to obtain for that purpose.

Commanders and others responsible for planning, deciding upon or executing necessary attacks, have to reach decisions on the basis of their assessment of whatever information from all sources may be available to them at the relevant time.

It is the understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light.

Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 7.

Egypt

Upon ratification of the 1977 Additional Protocol I, Egypt stated: “Military commanders planning or executing attacks make their decisions on the basis of their assessment of all kinds of information available to them at the time of the military operations.”

Egypt, Declaration made upon ratification of the 1977 Additional Protocol I, 9 October 1992.

Germany, Federal Republic of

At the CDDH, the Federal Republic of Germany stated:

Commanders and others responsible for planning, deciding upon or executing an attack necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.

Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 4.

Ireland

Upon ratification of the 1977 Additional Protocol I, Ireland stated:

In relation to Article 51 to 58 inclusive, it is the understanding of Ireland that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 9.

Israel

In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated that “the core question, in assessing a commander’s decision to attack, will be (a) whether he or she made the determination on the basis of the best information available, given the circumstances, and (b) whether a reasonable commander could have reached a similar conclusion”.

Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 125.

Italy

Upon ratification of the 1977 Additional Protocol I, Italy declared:

In relation to Articles 51 to 58 inclusive, the Italian Government understands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 5.

Netherlands

At the CDDH, the Netherlands stated:

Commanders and others responsible for planning, deciding upon or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.

Upon ratification of the 1977 Additional Protocol I, the Netherlands declared with regard to Articles 51 to 58 inclusive:

It is the understanding of the Government of the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 6.

New Zealand

Upon ratification of the 1977 Additional Protocol I, New Zealand stated:

In relation to Article 51 to 58 inclusive, it the understanding of the Government of New Zealand that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.

New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 2.

Spain

Upon ratification of the 1977 Additional Protocol I, Spain declared with regard to Articles 51 to 58 inclusive:

It is the understanding [of the Spanish Government] that the decision made by military commanders, or others with the legal capacity to plan or execute attacks which may have repercussions on civilians or civilian objects or similar objects, shall not necessarily be based on anything more than the relevant information available at the relevant time and which it has been possible to obtain to that effect.

Military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.

Upon signature of the 1977 Additional Protocol I, the United Kingdom stated:

Military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § d.

The United Kingdom repeated this statement upon ratification of the Protocol.

United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § c.

United States of America

At the CDDH, the United States stated:

Commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.

United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 241.

In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated, inter alia:

In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.